Citation NR: 9723531
Decision Date: 07/07/97 Archive Date: 07/15/97
DOCKET NO. 91-54 753 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for arthritis of the
cervical spine.
2. Entitlement to an increased rating for traumatic
arthritis of the sacroiliac area, currently rated as 10
percent disabling.
3. Entitlement to an increased rating for a stomach
disorder, currently rated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The appellant, his daughter, and Dr. T.S.
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1942 to
October 1945.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Lincoln,
Nebraska, Department of Veterans Affairs (VA) Regional Office
(RO).
In a February 1979 rating decision, the RO denied service
connection for arthritis of the cervical spine. That
decision became final when, after being notified of his
appellate rights in March 1979, the veteran did not appeal
the decision within one year from the date of the notice.
In May 1989, the veteran again applied for disability
compensation for arthritis of the cervical spine. In an
October 1989 rating decision, the RO denied the claim on the
basis that new and material evidence had not been submitted.
The veteran filed a notice of disagreement in May 1990, and a
statement of the case was issued in July 1990. A substantive
appeal was filed in November 1990. The Board remanded the
case for further development in May 1991 and June 1993. In
October 1995, a private physician testified, before a hearing
officer at the RO, that the veteran’s cervical arthritis was
related to service. The Board feels that the physician’s
testimony constitutes “new and material” evidence since the
February 1979 decision, the last final denial of the claim on
the merits. See Manio v. Derwinski, 1 Vet.App. 140 (1991);
Glynn v. Brown, 6 Vet.App. 523 (1994); Evans v. Brown, 9
Vet.App. 273 (1996). In April 1996, the hearing officer
considered all the evidence of record and denied the claim on
the merits. As it finds that new and material has been
submitted, the Board will also review the claim on a de novo
basis.
The issues of increased ratings for traumatic arthritis of
the sacroiliac area and a stomach disorder will be addressed
in the Remand section of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, essentially, that his cervical
arthritis is the result of an injury sustained in service in
1943. It is requested that any reasonable doubt be decided
in favor of the veteran.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against the claim of service connection for
arthritis of the cervical spine.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. The veteran’s cervical spine disability, diagnosed as
arthritis of the cervical spine, was not present in service
or until many years thereafter, and is not shown to be
related to service.
CONCLUSION OF LAW
Arthritis of the cervical spine was not incurred in or
aggravated by service, nor may it be presumed to have been
incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
5107 (West 1991 & Supp. 1996); 38 C.F.R. §§ 3.303, 3.307,
3.309 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the appellant's claim is
“well-grounded” within the meaning of 38 U.S.C.A. § 5107.
The Board is also satisfied that all relevant evidence has
been properly developed and that no further action is
required to comply with the statutory duty to assist.
38 U.S.C.A. § 5107.
Service Connection for Arthritis of the Cervical Spine
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Additionally, where a
veteran served continuously for ninety (90) days or more
during a period of war or during peacetime service after
December 31, 1946, and arthritis becomes manifest to a degree
of 10 percent within one year from date of termination of
such service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of such
disease during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307.
3.309. Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Initially, the Board notes that the service medical records
in the file are brittle and partially destroyed, having
obviously suffered from fire damage. The discernible
records, however, show that on enlistment examination in
January 1942 the veteran’s musculoskeletal system was
evaluated as normal. A hospital record indicates that on
admission in February 1944 the veteran reported pain at the
base of the skull and bilateral cervical muscles. He
indicated that there had been a gradual onset since about
four weeks ago, and that there was no history of injury. In
March 1944, X-rays of the cervical spine revealed normal
curvature. There was a small area of increased density
between the bodies of the 5th and 6th vertebrae on the
anterior surface, a line of lessened density on the posterior
surface of the spinous process of the fourth vertebra, and a
congenital anomaly of the 2nd and 3rd cervical vertebrae.
The interpreting radiologist reported: “Arthritis, chronic,
traumatic. Fused spinous process second and third cervical
vertebrae.” The discharge diagnosis was myositis of the
cervical muscles, cause undetermined. In October 1944, the
veteran complained of pain in the upper neck region for the
past seven months. He indicated that it started as stiff
neck and head pains possibly from cold exposure, that the
first attack lasted from 3-4 weeks, and that the present
attack started 8 weeks ago while at work. Examination showed
slight tenderness on the right side of the neck. There was
no muscular spasm or rigidity. X-rays of the cervical spine
revealed congenital 2nd and 3rd cervical vertebrae, and
arthritis of the lower cervical vertebra of unknown etiology.
In July 1945, the veteran reported that his neck was still
giving him trouble. There were no musculoskeletal defects
noted on separation examination in October 1945.
VA medical records indicate that the veteran was hospitalized
for low back pain in April 1953. At that time, there were no
mention of neck pain. The veteran was afforded a VA
examination in July 1953. The examining physician indicated
that according to records in the veteran’s treatment folder
he began noting “stiffness of neck with feeling of fullness
of right ear and back of head” in September 1943. It was
also noted that he had pain in the low back after an injury
while lifting a box in March 1943, and that he had been
hospitalized for a period at that time. X-rays of the
cervical spine revealed no evidence of injury or organic
disease.
X-rays of the cervical spine taken by the VA in November
1955, December 1955, and January 1956 revealed congenital
fusion of the 2nd and 3rd cervical vertebrae. There was no
gross evidence of fracture, dislocation or other bone or
joint pathology. On VA examination in November 1957, the
veteran gave a history of having injured his back in 1943.
He stated that he and 8 other men were lifting a 600 pound
transformer, and they let go, and he got all of the weight on
his back. He stated that he was hospitalized for 60 days
with traction and later received physiotherapy in several
hospitals. There was no mention of neck pain or of injury to
the neck in 1943. Physical examination of the head, neck and
upper extremities revealed no pathological condition nor was
there any evidence of limitation of motion in any of the
joints.
Private medical records show that the veteran underwent
surgery for lumbar disc herniation in 1968. The surgical
pathology report revealed evidence of osteoarthritis in the
lumbar spine. There was no mention of neck pain at that
time. In May 1975, he was admitted to Deaconess Hospital for
abdominal pain. While the admitting and discharge notes
mention arthritis of the lumbar spine and right knee, there
is no mention of a cervical spine problem. A medical
evaluation by Dr. B.K. in November 1975 is also negative for
any mention of pain or disability originating in the cervical
spine. In August 1978, X-rays of the cervical spine showed
marked degenerative narrowing of the C6-7 intervertebral disc
space with degenerative arthritis at C4-5 and C5-6, in
addition to an anomaly with incomplete segmentation at C2-3.
There were small hypertrophic spurs projected posteriorly
into the intervertebral foramina particularly between C4-5
and C6-7 bilaterally. There was no evidence of underlying
bone destruction or manifestation of trauma. In an August
1978 statement, the veteran’s brother-in-law indicated that
upon returning from military service after World War II, the
veteran revealed that he was experiencing pain in his neck,
back, and shoulder.
In November 1978, the veteran filed his original claim for
service connection for arthritis of the cervical spine.
On VA examination in January 1979, the veteran complained of
tightness and stiffness in his neck for over 20 years. After
reviewing the claims folder, the examining physician noted
that the veteran was treated for cervical myositis in 1943,
that an examination in 1953 failed to reveal any evidence of
osteoarthritis, and that on examination in 1957, there were
no cervical spine X-rays taken. The examiner also indicated
that recent X-rays showed marked osteoarthritic changes in
the cervical spine and that these changes were probably not
service-connected. In February and August 1990, VA
radiologists reported that X-rays of the cervical spine
showed degenerative spurring at C4-5 through C6-7, and disc
space narrowing at C2-3 through C6-7.
Records from the St. Louis University Medical Center reveal
that in September 1990 the veteran reported a history of
long-standing low back and neck pain which had become worse
over the past several years. He did not recall any recent
injury. He indicated that he was injured in the service when
a generator he was lifting fell and pinned his head. He has
had neck and back pain since that time. On examination, he
had limited motion of his cervical spine in all directions
with tenderness over the suprascapular musculature. He had
no pain with intervertebral compression of the head of the
cervical spine. X-rays of the cervical spine showed a
congenital fusion between C2 and 3 and significant
spondylosis throughout the balance of the cervical spine.
VA examination in August 1991 was negative for complaints or
findings regarding the cervical spine. On VA examination in
February 1994, the veteran gave a history of injuring his
lower back and neck while lifting machinery on active duty in
1943. On physical examination, range of motion of the
cervical spine was limited in all directions by pain. It was
noted that radiographic studies of the cervical spine
revealed degenerative joint disease and degenerative disc
disease. The diagnoses were osteoarthritis and degenerative
disc disease.
In a February 1995 statement, Dr. S.H., Associate Professor
of Clinical Radiology at St. Louis University, indicated that
the veteran suffered pains in his neck, diagnosed as myositis
in the line of duty. The physician stated that beginning in
June 1945, the veteran began suffering from headaches and
that over the last several years had suffered from dizzy
spells and blackouts, some of which had resulted in traumas
in other parts of his body. The physician indicated that the
dizzy spells were due to vertebral artery insufficiency which
could be traced back to his war injury in 1944. Dr. H.
stated that, in his mind, it was “conceivable” and “not
beyond reasonable doubt” that the trauma sustained by the
veteran while serving in the Army contributed to his cervical
spine arthropathy, and that both the trauma that he sustained
and the cervical arthropathy contributed to his cerebral
vascular insufficiency that has result in dizziness,
headaches, ischemic attacks, and small strokes. In his mind,
it was “not beyond reasonable doubt” that these events were
related.
In February 1995, the veteran submitted a copy of an article
which concluded that vertebral artery injuries due to major
cervical spine trauma as determined by MR angiography were
common. Submitted in October 1995 were photocopies of pages
from a book on cervical spondylosis.
At the veteran’s October 1995 hearing, Dr. T.S. testified
that he had reviewed the veteran’s file, and that the
veteran’s complaints of neck pain in 1944, several months
after the trauma, were consistent with the onset of cervical
spondylosis. Dr. T.S. noted that X-rays conducted in 1944
revealed a C2-3 congenital blocked vertebra as well as some
evidence of arthritis at the C5-6 area. The physician
claimed that although the veteran was seen on several
occasions in the 1950’s for his low back and not for his
cervical spine, he must have had some neck pain at that time
as X-rays of the cervical spine were done. Dr. T.S.
maintained that necks are very difficult to examine, and that
if additional X-rays had been done they possibly could have
shown the arthritis at the C5-6 level. The physician
concluded that the veteran’s cervical spine disability was
the result of trauma in service. Dr. T.S. also stated that
it was reasonable to expect the veteran to have some
aggravation of his congenital problem also. Transcript,
hereinafter, T. at 5. The veteran testified that his neck
was injured in service when a generator he was lifting fell
on him and pinned him against a concrete wall. T. at 6. He
stated that he was taken to the hospital where numerous tests
were done, and that they took X-rays and always came back
saying rigidity but nothing about the cervical section. T.
at 7. He stated that he has been continually plagued with
neck problems since that time. T. at 6. After his
separation from service, he worked for the VA and usually got
physicians to give him medication and treatment. He stated
that he had surgery on his lumbar spine in 1968. T. at 8.
The veteran’s daughter testified that when she was a child he
always had problems with his neck and back and that sometimes
he would sit in hot water to loosen up the back of his neck.
T. at 9. The veteran stated that he did not have any X-ray
reports that would show arthritis of the cervical spine from
1953 to about 1978. T. at 11.
Subsequently, the RO requested that the physician who
conducted the February 1994 VA examination review the
veteran’s entire claims folder and offer an opinion regarding
the etiology of the veteran’s cervical arthritis. In March
1995, Dr. D.B., Chief of Rheumatology at the VA Medical
Center in St. Louis, submitted an opinion. In this opinion,
he set forth, in chronological order, his findings upon
review of the service and post-service medical records. He
stated the following:
Medical records from 1944 do not support
the veteran’s claim that his neck pain
was the result of a neck injury in 1943.
In fact, these records stated on two
independent occasions that the neck pain
began in February 1944 without a history
of prior injury to the neck.
Furthermore, the numerous physician’s
notes from 1944 through 1975 frequently
mention the 1943 injury, but describe it
as an injury to the lower back. Although
many of these accounts differ slightly,
none of the accounts prior to 1978 state
that the veteran injured his neck in the
incident that injured his back.
Medical records do not support the
veteran’s claim that he had cervical
osteoarthritis at an unusually early age.
Although two X-rays obtained during 1944
list cervical arthritis in the summary
statement, the accompanying descriptions
do not support that diagnosis. X-ray
findings that suggest a diagnosis of
degenerative disease in the spine include
loss of disc height, vacuum phenomenon in
the disc, change in alignment of the
vertebral bodies, osteophytes,
subchondral sclerosis, and facet joint
narrowing. Once present, these
degenerative changes are permanent, and
should be seen on X-rays taken at a later
date. The texts of the X-ray reports
from 1944 do not mention these typical
features of degenerative disease, and
therefore the diagnosis of cervical
arthritis made in 1944 are questionable.
Four subsequent X-ray reports during
1953-56 by three different radiologists
showed no evidence of degenerative
arthritis. It is not plausible to state
that degenerative arthritis was present
during 1944 but no longer present 9-12
years later. Therefore, I feel that the
evidence best supports a conclusion that
cervical degenerative arthritis was not
present in 1944. Hence, the first
verifiable evidence of cervical arthritis
is in 1978, when the veteran was 58 years
old. The veteran applied for review of
his disability status (sic) in 1946,
1953, 1957, and 1975 and on none of these
occasions did he request service-
connected status for a neck injury.
Between 1956 and 1978 there are no
reports of X-rays of the cervical spine,
suggesting that the veteran did not have
complaints that warranted X-ray
evaluation. The records suggest that
degenerative arthritis of the cervical
spine was not a significant clinical
problem until the late 1970’s, and could
be attributed to the patient’s age and
his congenital fusion of C2 to C3. The
claim of premature onset of cervical
arthritis from trauma during World War II
is not supported by the available
records.
Although the issue of service connection for arthritis of the
cervical spine is a legal question, and not within the
purview of Dr. D.B., the VA physician noted above, the Board
has carefully considered his medical opinion regarding the
etiology of the veteran's cervical arthritis. The Board has
also considered the complete evidence of record with regard
to the veteran's cervical arthritis, including the opinions
of Drs. S.H. and T.S. These opinions are medical conclusions
which the Board is not free to ignore or disregard. Willis
v. Derwinski, 1 Vet.App. 66, 70 (1991). However, the Board
is not required to accept the medical authority supporting a
claim if it provides reasons for rejecting such evidence and,
more importantly, provides a medical basis other than its own
opinion to support its ultimate conclusion. Simon v.
Derwinski, 2 Vet.App. 621, 622 (1992).
In this case, the opinion of Dr. S.H. has been duly
considered; however, there is no indication that his opinion
concerning the etiology of the veteran’s cervical spine
disability was based on a review of the veteran's complete
medical record. In addition, the Board finds his statement
that it is “conceivable” and “not beyond a reasonable doubt”
that trauma sustained by the veteran while in service
contributed to his cervical spine arthropathy purely
speculative and not supported by the evidence of record.
Specifically, the record does not indicate that the veteran
sustained any injury to his cervical spine in service. As
such, the physician’s opinion is based on an inaccurate
premise and is of diminished probative value. Reonal v.
Brown, 5 Vet.App. 458 (1993) (where a doctors medical opinion
was based on an inaccurate factual premise such opinion has
limited probative value). As the opinion of Dr. T.S. is also
based on the unsubstantiated premise that the veteran
sustained a neck injury in service, the Board must also
respectfully reject such opinion due to its limited probative
value.
In support of his claim, the veteran has submitted
photocopies of a medical article and book on the cervical
spine. In Quiamco v. Brown, 6 Vet.App. 304 (1994), the
United States Court of Veterans Appeals (Court) held: “the
treatise quoted must bear directly on the veteran’s medical
condition.” As the evidence submitted by the veteran does
not speak to the specific facts of this case, its probative
value is greatly diminished.
The only other evidence which relates the veteran’s cervical
arthritis to service is the contentions of the veteran.
However, the Board notes that the veteran is not competent to
give a credible opinion on a medical question such as this.
See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (holding
that lay persons are not competent to offer medical
opinions).
Thus, the Board determines that Dr. D.B.’s March 1995
opinion, ruling out any etiologic link between the veteran’s
cervical arthritis and service, provides the basis upon which
the Board rests its conclusion that the preponderance of the
evidence is against the veteran’s claim for service
connection for arthritis of the cervical spine. In support
of his opinion, Dr. D.B. noted that the records showed on two
separate occasions that the veteran’s neck pain began in
early 1944 without a history of prior injury to the neck.
Furthermore, the numerous physician’s notes from 1944 through
1975 frequently mention the 1943 injury, but describe it as
an injury to the lower back. None of these accounts indicate
that the veteran injured his neck in the incident that
injured his back. Although X-rays conducted in 1944 refer to
an impression of cervical arthritis as well as a congenital
anomaly in the area of the cervical spine, no such findings
were noted at the VA examination in July 1953. At that time,
the radiologist stated emphatically that there was no
evidence of pathology in the neck. In addition, X-ray
reports in 1955 and 1956 by three different radiologists
showed no evidence of degenerative arthritis of the cervical
spine. In this regard, Dr. D.B. indicated that “it is not
plausible to state that degenerative arthritis was present
during 1944 but no longer present 9-12 years later.”
Therefore, the Board concludes that the reference to cervical
arthritis during service must be discounted as merely an
impression which was not supported by the subsequent VA
examination in 1953, when the examiner was specifically
looking for arthritic changes in the cervical spine, or the
three X-ray reports in 1955 and 1956. The evidence suggests
that degenerative arthritis of the cervical spine was not a
problem until 1978, and could be attributed to the veteran’s
age and his congenital fusion of C2 to C3.
Accordingly, the Board finds that there is insufficient
evidence to support the conclusion that the veteran’s
cervical degenerative arthritis was present in service or was
due to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113;
38 C.F.R. §§ 3.303, 3.307, 3.309. While the Board has
considered the doctrine of resolving the benefit of the doubt
in the veteran’s favor, the record does not demonstrate an
approximate balance of positive and negative examination as
to warrant resolution of this matter on that basis.
38 U.S.C.A. § 5107(b).
Regarding the representative’s assertion that service
connection should be granted on the basis of aggravation, the
Board notes that there is no evidence in the record that the
veteran’s cervical arthritis preexisted his period of active
service. Accordingly, the provisions of 38 C.F.R. § 3.306
are not applicable. In addition, the Board notes that
although congenital or developmental defects may not be
service connected, any disability from a superimposed chronic
acquired disease or injury during service may be considered
for service connection. O.G.C. Precedent Opinion 82-90, 55
Fed. Reg. 45711 (1990). In the veteran’s case, there is no
satisfactory evidence that he sustained a superimposed
disease or injury to the cervical spine in service, nor has
it been demonstrated that his congenital anomaly of the 2nd
and 3rd cervical vertebrae was aggravated by service.
Therefore, service connection on the basis of aggravation of
a congenital defect is not warranted under 38 C.F.R.
§ 3.303(c).
ORDER
Entitlement to service connection for arthritis of the
cervical spine is denied.
REMAND
The veteran contends, essentially, that his service-connected
conditions have worsened and warrant increased evaluations.
A review of the record indicates that the veteran was last
afforded a VA examination for his low back in February 1994.
At that time, the examiners were unaware of the now
precedential decision of DeLuca v. Brown, 8 Vet.App. 202
(1995). In that case, the Court held that when a diagnostic
code provides for compensation based solely upon limitation
of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must
also be considered, and the examinations upon which the
rating decisions are based must adequately portray the extent
of functional loss due to pain “on use or due to flare-ups.”
DeLuca v. Brown, 8 Vet.App. 202 (1995).
As the examiner in February 1994 did not consider the extent
of functional loss due to pain, an additional examination of
the low back is necessary to render a fair disposition of
this issue.
Regarding his service-connected stomach disorder, the veteran
contends that he has frequent episodes of abdominal pain and
severe bouts of regurgitation which cause severe discomfort
and burning. He indicates that he currently weighs 117
pounds.
VA outpatient treatment records shows that in April 1995 the
veteran weighed 141 pounds. On VA examinations in September
1995 and May 1996, he reportedly weighed 139 and 131 pounds,
respectively.
The veteran is currently rated for his service-connected
stomach disorder (peptic ulcer disease, gastroesophageal
reflux disease and esophageal motility disorder) pursuant to
38 C.F.R. § 4.114, Diagnostic Code 7305 for duodenal ulcer,
and Diagnostic Code 7346 for hiatal hernia. He is currently
evaluated as 30 percent disabling.
According to the VA’s Schedule for Rating Disabilities, a 60
percent evaluation under Diagnostic Code 7346 requires
symptoms of pain, vomiting, material weight loss and
hematemesis or melena with moderate anemia; or other symptom
combinations productive of severe impairment of health.
38 C.F.R. § 4.114, Diagnostic Code 7346. Under Diagnostic
Code 7305, a moderately severe duodenal ulcer with impairment
of health manifested by anemia and weight loss or recurrent
incapacitating episodes averaging 10 days or more in duration
at least four or more times a year, is rated 40 percent
disabling. 38 C.F.R. § 4.114, Diagnostic Code 7305.
The VA has the duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The
Court has held that the duty to assist the veteran includes
obtaining medical records and medical examinations where
indicated by the facts and circumstances of an individual
case. Littke v. Derwinski, 1 Vet.App. 90 (1990).
On the basis of the above and pursuant to 38 C.F.R. § 19.9,
the Board determines that further development of the evidence
is essential for a proper appellate decision and, therefore,
remands the matter to the RO for the following action:
1. The RO should ask the veteran to
provide the names, addresses, and
approximate dates of treatment of all VA
and private health care providers who
have treated him for his service-
connected low back and stomach disorders
in recent years. After securing any
necessary authorizations, the RO should
request copies of all indicated records
and associate them with the claims folder
which have not been previously secured.
2. The RO should schedule the veteran
for a comprehensive VA orthopedic
examination to determine the current
severity of the service-connected low
back disability. All indicated tests,
studies and X-rays should be performed.
All objective findings should be
reported, including range of motion
measurements. The examiner should note
any objective findings regarding the
following: functional loss due to pain,
weakened movement, excess fatigability,
incoordination, and painful motion or
pain with use of the low back. The
report should also address the effect of
the veteran’s current low back disability
on his ability to perform routine
functions. The claims folder and a
separate copy of this remand must be made
available to and reviewed by the examiner
prior to the examination. The RO must
inform the veteran of all consequences of
his failure to report for the examination
in order that he may make an informed
decision regarding his participation in
said examination.
3. The RO should schedule the veteran
for a comprehensive VA gastrointestinal
examination in order to determine the
current severity of his stomach disorder.
All indicated tests, studies and X-rays
should be performed. The examiner is
requested to render an opinion as to the
severity of the underlying peptic ulcer.
The opinion may be stated in terms of
degree (i.e., mild, moderate, moderately
severe or severe). The examiner should
render an opinion as to whether the
peptic ulcer is productive of definite
impairment of health, with emphasis on
complaints of vomiting, recurrent
hematemesis, melena and weight loss. The
veteran’s current weight must be reported
and the examiner should indicate whether
any weight loss since the last
examination can be considered material.
The claims folder and a separate copy of
this remand must be made available to and
reviewed by the examiner prior to the
examination. The RO must inform the
veteran of all consequences of his
failure to report for the examination in
order that he may make an informed
decision regarding his participation in
said examination.
4. After the above examinations are
conducted, the RO should review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
reports of examinations. If the reports
do not include sufficient data or
adequate responses to the specific
opinions requested, the reports must be
returned to the examiners for corrective
action. 38 C.F.R. § 4.2.
5. Thereafter, the RO should
readjudicate the issues of increased
ratings for traumatic arthritis of the
sacroiliac area and a stomach disorder.
The RO should discuss all applicable
diagnostic codes, with particular
attention to the applicability of the
provisions of 38 C.F.R. §§ 4.40 and 4.45,
and DeLuca v. Brown, 8 Vet.App. 202
(1995).
If the benefit sought is denied, then the appellant and his
representative should be provided a supplemental statement of
the case which reflects RO consideration of all additional
evidence, and the opportunity to respond. Thereafter, the
case should be returned to the Board for further appellate
review. The purpose of this REMAND is to obtain additional
evidence and ensure that the veteran is afforded all due
process of law. The Board intimates no opinion, either
factual or legal, as to the ultimate conclusion warranted in
this case. No action is required by the veteran until
contacted by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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